CIT Group Equipment Financing, Inc. v. Alberto

130 F.R.D. 657, 1990 U.S. Dist. LEXIS 5242, 1990 WL 57158
CourtDistrict Court, N.D. Illinois
DecidedFebruary 26, 1990
DocketNo. 88 C 6334
StatusPublished

This text of 130 F.R.D. 657 (CIT Group Equipment Financing, Inc. v. Alberto) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CIT Group Equipment Financing, Inc. v. Alberto, 130 F.R.D. 657, 1990 U.S. Dist. LEXIS 5242, 1990 WL 57158 (N.D. Ill. 1990).

Opinion

ORDER

NORGLE, District Judge.

Before the court is the motion of E.A. Cox Company (“Cox”), pursuant to Fed.R. Civ.P. 24(a)(2), to intervene, as a matter of right, in the supplementary proceedings ongoing in this action.

FACTS

On September 23, 1988, judgment by default was entered against defendant, Sam Alberto, and in favor of plaintiff, The CIT Group Equipment Financing, Inc., in the amount of $522,772.44, plus costs. Supplementary proceedings revealed that Alberto was the holder of 100% of the beneficial interest in Land Trust No. 1083725, with the Chicago Title and Trust Company as Trustee (the “Land Trust”). The Land Trust held title to real estate commonly known as 2424 S. Laflin Ave., Chicago, Illinois (the “Property”). CIT obtained a judgment lien against Alberto’s beneficial interest in the Property through service of a citation to discover assets, pursuant to Fed.R.Civ.P. 69. On July 7, 1989, Alberto was ordered to execute and deliver to CIT, by July 17, 1989, an assignment of his [659]*659beneficial interest in the Land Trust. Alberto refused to comply with the court’s orders and was found to be in contempt. Consequently, pursuant to Fed.R.Civ.P. 70, the court entered an order on July 19, 1989 divesting Alberto of all beneficial interest in the Land Trust and vesting the beneficial interest in CIT.

On August 11,1989, The Lawndale Trust and Savings Bank, now known as the Bank of Chicago—Little Village, (the “Lawndale Bank”) moved to intervene in this action, asserting a lien interest in the Land Trust. The Lawndale Bank asserted that it had obtained a judgment against Alberto in state court on April 28, 1988, in the amount of $224,654.13, and pursuant to that judgment served Alberto with a citation to discover assets on May 6, 1988, creating a judgment lien in its favor as to Alberto’s beneficial interest in the Land Trust.

On October 12, 1989, an agreed order was entered which granted the Lawndale Bank’s motion for leave to intervene and resolved the lien dispute between CIT and the Lawndale Bank. The agreed order also provided for absolute assignment of the beneficial interest in the Property to CIT and then from CIT to A & W Partners, an Illinois Partnership. The second assignment reflected a private sale of CIT’s interest to A & W Partners.

For our purposes, the pertinent parts of the October 12, 1989 agreed order are as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that CIT is the owner of the entire beneficial interest in Trust No. 1083725 at Chicago Title and Trust Company, subject only to a prior collateral assignment in favor of Tinley Park Bank and, that following satisfaction of CIT’S judgment by assignment of said beneficial interest to A & W Partner, an Illinois general partnership, The Lawndale Trust and Savings Bank has a claim and lien against said beneficial interest which is junior and subordinate only to Tinley Park Bank.
IT IS FURTHER ORDERED, that Chicago Title and Trust Company, as Trustee aforesaid, as a result of the Uniform Commercial Code sale by CIT be, and hereby is, directed to record in the records of said Trust an absolute assignment of beneficial interest from CIT to A & W Partners, an Illinois general partnership, subject only to a prior collateral assignment in favor of Tinley Park Bank and the claim of The Lawndale Trust and Savings Bank against said beneficial interest which is junior and subordinate to the position of Tinley Park Bank, (emphasis added).

On December 19, 1989, Cox filed its Motion to Intervene, asserting that it is a lessee of a portion of the Property and that under the lease it “has a right of first refusal to purchase all of the property upon notification by Alberto of any proposed transfer thereof.” Motion to Intervene, II 6.

Attached as Exhibit A to Cox’s Motion to Intervene is an untitled agreement between Alberto and Cox, dated April 1, 1983, which contains the terms of a lease for office space on the Property, as well as other property (the “Lease”). The Lease provides among other things, that “all conditions and covenants contained in this lease shall be binding upon the heirs, executors, administrators and assigns of the parties.” Lease at p. 3. Attached to the Lease and included with Exhibit A is a document entitled “Rider Attached To And Made A Part Of The Lease Between E.A. Cox Company (Lessee) and Sam Alberto (Lessor) dated April 1, 1983.” Paragraph 6 of the Rider states:

6) Lessor grants to Lessee the right of first refusal to acquire the Lessor’s property (currently bounded by Lessor’s fence) located on both the East and West side of Laflin Street from 2400 S. Laflin and running south to the ship canal. Said right is the right to acquire the property under the same terms and conditions as those offered by an arms-length bona fide purchaser. Lessee must exercise said right in writing within fifteen working days of receipt of a written notification from Lessor of an exist[660]*660ing offer to purchase. Lessor’s notice shall have attached a fully executed copy of said offer to purchase.

Cox asserts that the Lease was recorded with the Cook County Recorder of Deeds. Cox does not indicate whether it lodged its interest with the Trustee of the Land Trust. Cox further asserts that it never received notice of the assignments of the beneficial interests in the Property.

Discussion

Rule 24(a)(2) provides that:

[U]pon timely application anyone shall be permitted to intervene in an action: ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situate that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.1

The interest necessary to satisfy Rule 24(a)(2) must be “a direct, significant legally protectable interest.” American National Bank and Trust Company of Chicago v. The City of Chicago, 865 F.2d 144, 146 (7th Cir.1989) quoting Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir.1982). Whether an interest is impaired “depends upon whether the decision of a legal question involved in the action would as a practical matter foreclose rights of the proposed intervenors in a subsequent proceeding.” 865 F.2d at 147-48, quoting Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th Cir.1982). Foreclosure is defined in terms of stare decisis. 865 F.2d at 148.

Intervention as a matter of right is appropriate in this case.

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Related

FIRST NAT'L BK. OF BARRINGTON v. Oldenburg
427 N.E.2d 1312 (Appellate Court of Illinois, 1981)
Wade v. Goldschmidt
673 F.2d 182 (Seventh Circuit, 1982)
Meridian Homes Corp. v. Nicholas W. Prassas & Co.
683 F.2d 201 (Seventh Circuit, 1982)

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Bluebook (online)
130 F.R.D. 657, 1990 U.S. Dist. LEXIS 5242, 1990 WL 57158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cit-group-equipment-financing-inc-v-alberto-ilnd-1990.